Dunlap v. Social Security Administration, No. 3:2017cv00064 - Document 25 (E.D. Tenn. 2018)
Court Description: ORDER denying Plaintiff's 14 Motion for Summary Judgment; granting Defendant's 18 Motion for Summary Judgment; accepting and adopting the Magistrate Judge's 22 Report and Recommendation. The decision of the Commissioner is AFFIRMED; and This matter is DISMISSED WITH PREJUDICE. Signed by District Judge Harry S Mattice, Jr on 3/6/2018. (BJL, )
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Dunlap v. Social Security Administration Doc. 25 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE at KNOXVILLE BRAD H. DUNLAP, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. 3:17-cv-64 J udge Mattice Magistrate J udge Poplin ORD ER On J anuary 19, 20 18, the United States Magistrate J udge assigned to this case filed a Report and Recom m endation (Doc. 22) pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b). The Magistrate J udge recom m ended that: (1) Plaintiff’s Motion for Sum m ary J udgm ent (Doc. 14) be denied; (2) Defendant’s Motion for Sum m ary J udgm ent (Doc. 18) be granted; and (3) the decision of the Com m issioner be affirm ed. (Doc. 22 at 23). Plaintiff filed tim ely objections to the Magistrate J udge’s Report and Recom m endation (Doc. 23). He presents a wide array of argum ents, including: (1) that the m edical opinion of Dr. Redmon, Plaintiff’s treating physician, regarding the nature and extent of Plaintiff’s pain should have resulted in a finding of disability; (2) that Dr. Redm on’s opinion that Plaintiff could not perform full-tim e work was well-supported and should have been afforded greater weight; (3) that the ALJ improperly relied on the opinion of Dr. Hunt, who did not exam ine all of Plaintiff’s m edical records and “m isread” Plaintiff’s MRI; (4) the ALJ im properly denied Plaintiff’s subpoena request as to Dr. Hunt; (5) the ALJ and Magistrate J udge failed to analyze the im pact and side effects of Dockets.Justia.com Plaintiff’s pain m edication; (6) the Magistrate im properly relied on the Sixth Circuit’s decision of a prior social security appeal filed by Plaintiff; and (7) the Magistrate J udge im properly concluded that the report from Dr. Maccree was not a m edical opinion. (Doc. 23). The Court reviews Plaintiff’s objections de novo. See 28 U.S.C. § 636(b)(3). The Court has conducted a review of the Report and Recom m endation, as well as the record, and it agrees with the Magistrate J udge’s well-reasoned conclusions for the reasons stated herein. I. AN ALYSIS A. Op in io n o f D r. Re d m o n Re gard in g Plain tiff’s Pain As outlined above, Plaintiff’s treating physician Dr. Redm on opined: “[Plaintiff] has a m edical condition, confirm ed by MRI and EMG/ NCV that could reasonably be expected to produce severe pain.” (Doc. 13-4 at 71). According to Plaintiff, if he has a m edical condition confirm ed by objective m edical evidence that m ay reasonably be expected to produce severe pain, he m ust be found disabled. (Doc. 23 at 2). Plaintiff cites Duncan v. Secretary , 80 1 F.2d 847, 853 (6th Cir. 1986), in support of this argum ent. While Plaintiff’s recitation of the rule set forth in Duncan is correct, its application to the facts of this case do not warrant a finding that he is disabled. The Magistrate J udge addressed the ALJ ’s consideration of Dr. Redm on’s opinion in this respect, and concluded that Dr. Redm on’s conclusions regarding the severity of Plaintiff’s pain did not find support in the record as a whole. (Doc. 22 at 13-14). As explained by the Magistrate J udge, Redm on’s own treatm ent notes revealed that Plaintiff’s pain im proved significantly in response to oral m edication and injections. See Burney v. Com m ’r of Soc. Sec., 20 13 WL 1289310 , at *3 (E.D. Mich. Mar. 28, 20 13) (citing Pasco v. Com m ’r of Soc. Sec., 137 Fed. App’x. 828, 836 (6th Cir. 20 0 5)) (“Notably, im pairm ents that are controlled by 2 m edication are not disabling.”). He also noted that Plaintiff “appeared in no acute distress, his sym ptom s were stable, and his gait im proved.” (Doc. 22 at 13-14). Duncan does not stand for the proposition that any evidence indicating a condition causing severe pain, no m atter how contradictory or unsupported, com m ands a finding of disability. Rather, courts m ust look to the objective m edical evidence contained in the record as a whole, which is exactly what occurred in this case. Thus, Plaintiff’s objection will be OVERRU LED . B. Op in io n o f D r. Re d m o n Re gard in g Plain tiff’s Ability to W o rk Plaintiff’s argues that a second opinion of Dr. Redm on should have resulted in a finding of disability. Specifically, Dr. Redm on opined: “[Plaintiff]’s m edical conditions prevent him from perform ing any type of full tim e work.” (Doc. 13-4 at 71). Plaintiff presented an identical argum ent to the Magistrate J udge, who analyzed it fully and found it was without m erit. (Doc. 22 at 6-15). These argum ents are not properly before the Court, and Plaintiff’s objections in this respect will be OVERRU LED . See VanDiver v. Martin , 30 4 F. Supp. 2d 934, 937 (E.D. Mich. 20 0 4) (“A general objection, or one that m erely restates the argum ents previously presented is not sufficient to alert the court to alleged errors on the part of the m agistrate judge. An ‘objection’ that does nothing m ore than state a disagreem ent with a m agistrate’s suggested resolution, or sim ply sum m arizes what has been presented before, is not an ‘objection’ as that term is used in this context.”). C. W e igh t Affo rd e d to D r. H u n t’s Fin d in gs Plaintiff also objects to the Magistrate J udge’s finding that the ALJ properly relied upon the m edical opinion of Dr. Hunt. According to Plaintiff, Dr. Hunt did not exam ine Plaintiff’s m edical records or review the report of his treating physician Dr. Redm on. 3 (Doc. 23 at 3-4). In addition, Plaintiff alleges that Dr. Hunt’s conclusions regarding his MRI are incorrect, as Dr. Hunt concluded that Plaintiff had “m inim al left neural foram inal narrowing” while another report in the record characterized the narrowing as “m arked.” (Docs. 23 at 3; 13-2 at 115; 13-4 at 72). Plaintiff’s argum ents regarding the m edical records Dr. Hunt failed to review are without m erit. The record reflects that Dr. Hunt took a m edical history from Plaintiff, conducted a physical exam ination, and analyzed a recent MRI. (Doc. 13-2 at 114-116). These are factors that courts should consider when evaluating m edical opinions from non-treating sources. 20 C.F.R. § 40 4.1527(C)(1), (3)-(6). Plaintiff cites no authority that requires a physician to exam ine a claim ant’s entire m edical record before form ulating an opinion. In addition, the Court finds Plaintiff’s challenges to Dr. Hunt’s interpretation of his MRI sim ilarly unavailing. The report Plaintiff refers to that explains the narrowing in his spine as “m arked” as opposed to “m inim al” is unsigned. There is no indication of who authored the report or their history of treatment with Plaintiff, which is perhaps why the ALJ relied on Dr. Hunt’s findings instead. (Doc. 13-4 at 72). In any event, that two physicians had different interpretations of the sam e MRI is no reason to disregard the ALJ ’s conclusions. Such contradictory evidence is com m onplace in social security appeals, and the Com m issioner is tasked with resolving those contradictions. See Doll v. Colvin, 20 16 WL 60 9140 3, at *14 (M. D. Tenn. Sept. 21, 20 16) (“When contradictory evidence in the records exists, the final decision regarding the evaluation of evidence as a whole lies with the Com m issioner.”) (citing 20 C.F.R. § 416.927(e)(2)). Finally, there is no evidence suggesting that Dr. Hunt analyzed the wrong MRI, as Plaintiff seem ingly 4 speculates. Accordingly, because this objection is not well taken, it will be OVERRU LED . D. Th e ALJ’s D e n ial o f Plain tiff’s Su bp o e n a Re qu e s t Next, Plaintiff argues that Dr. Hunt should have clarified which MRI he analyzed and also identified other evidence that supports his opinions. For that reason, he alleges that the ALJ im properly denied his subpoena request as to Dr. Hunt. (Doc. 23 at 4). The Court declines to address this objection because it rests upon argum ents that were not raised in Plaintiff’s underlying Motion for Sum m ary J udgm ent (Docs. 14 & 15). As explained by the Sixth Circuit, “while the Magistrate J udge Act, 28 U.S.C. § 631 et seq., perm its de novo review by the district court if tim ely objections are filed, absent com pelling reasons, it does not allow parties to raise at the district court stage new argum ents or issues that were not presented to the m agistrate.” Murr v. United States, 20 0 F.3d 895, 90 2 n. 1 (6th Cir.20 0 0 ); see also W hittum v. Saginaw County , 20 0 5 WL 3271810 , at *4 (E.D.Mich. Nov.22, 20 0 5) (“The Magistrate Act was not intended to give litigants an opportunity to run one version of their case past the m agistrate, then another past the district court.”) (internal quotation m arks and citation om itted). Accordingly, this objection will be OVERRU LED . E. Sid e Effe cts o f Plain tiff’s Me d icatio n s Plaintiff also asserts that the Magistrate J udge did not address the ALJ ’s failure to consider the im pact and side effects of Plaintiff’s pain m edication. Specifically, Plaintiff states that the ALJ failed to note his testim ony at the hearing and at a previous hearing that his hydrocodone prescription, which he ingests daily, causes drowsiness. Plaintiff testified that the drowsiness is so severe that he m ust lay down for an hour or two, and som etim es up to half a day, after taking this m edication. (Docs. 23 at 4-6). 5 First, the Court notes that Plaintiff did not clearly develop this particular argum ent in his Motion for Sum m ary J udgm ent (Doc. 15). He only m entions his alleged side effects in a footnote, and instead m ainly focuses on the ALJ ’s om ission in discussing the num ber of epidural injections he received or the num ber of years he has been taking pain m edication. (Id. at 4-6 & n. 2). Thus, the question of whether this objection is properly before the Court is borderline at best. See Murr, 20 0 F.3d at 90 2 n. 1. Even if the Court were to give Plaintiff the benefit of the doubt, his objection fails on its m erits. Plaintiff is correct that in evaluating com plaints of pain, federal regulations m andates that the ALJ consider “[t]he type, dosage, effectiveness, and side effects of any m edication you take or have taken to alleviate your pain or other sym ptom s.” 20 C.F.R. § 416.929(c)(3)(iv). Indeed, the Magistrate J udge cited this rule in the Report and Recom m endation. (Doc. 22 at 14). Plaintiff’s alleged side effects, however, find no support in his m edical records or treatm ent notes. The only portion of the record Plaintiff relies upon in this argum ent is his own testim ony at two separate ALJ hearings. (Doc. 13-5 at 172, 195). Notably, Plaintiff’s credibility was called into question by the ALJ , who clearly noted in the written opinion that he found certain testim ony of Plaintiff “not believable.” (Doc. 13 at 41). Furtherm ore, and as explained by the Magistrate J udge, “an ALJ can consider all the evidence without directly addressing in his written decision every piece of evidence subm itted by a party.” (Doc. 22 at 14) (quoting Kornecky v. Com m ’r of Soc. Sec., 167 Fed. App’x. 496, 50 8 (6th Cir. 20 0 6)). Given that Plaintiff’s alleged side effects were not noted by his doctors, and the fact that the ALJ is not required to discuss every consideration in the written opinion, the Court finds that this objection should be OVERRU LED . 6 F. Th e Magis trate Ju d ge ’s Re lian ce o n Plain tiff’s Prio r Cas e This case is not Plaintiff’s first appeal of the Com m issioner’s decision denying benefits. He form erly filed an appeal that was denied by the district court, which was later affirm ed by the Sixth Circuit in Dunlap v. Com m ’r of Soc. Sec., 50 9 Fed. App’x. 472, 474 (6th Cir. 20 12). In his objections, Plaintiff argues that the Magistrate J udge im properly relied on that Sixth Circuit’s opinion in his Report and Recom m endation. According to Plaintiff, the Sixth Circuit’s decision in Dunlap is not controlling here because his condition has worsened since the tim e of the previous appeal. (Doc. 23 at 6). Plaintiff is m istaken that the Magistrate J udge im properly relied on Dunlap. It is evident from the Report and Recom m endation that the Magistrate J udge did not look to Plaintiff’s previous appeal in order to deduce the severity of his im pairm ents or to avoid analyzing the facts of this particular case. Rather, the Magistrate J udge m erely cited the Sixth Circuit’s rule in Dunlap outlining the proper weight to afford to m edical opinions that invade the purview of the Com m issioner’s decision as to whether a claim ant is disabled. The Sixth Circuit further outlined instances in which an ALJ ’s failure to clearly label his explanation as to the weight he afforded an opinion constitute harm less error. (Doc. 22 at 12-13); Dunlap, 50 9 Fed. App’x. 474-76. Despite Plaintiff’s assertions to the contrary, there is no im propriety to be found here. The objection will accordingly be OVERRU LED . G. W h e th e r D r. Maccre e ’s Re p o rt is a Me d ical Op in io n Finally, Plaintiff’s contests the Magistrate J udge’s finding that a report authored by Dr. Maccree did not constitute a m edical opinion. Plaintiff’s argum ents supporting this objection are identical to those set forth in his Motion for Sum m ary J udgm ent. (Doc. 15 at 7-8). The Magistrate J udge fully considered these argum ents and outlined clear reasons 7 for rejecting them in the Report and Recom m endation. (Doc. 22 at 15-18). Thus, the objection is not properly before the Court, and it will be OVERRU LED . See VanDiver v. Martin, 30 4 F. Supp. 2d at 937. II. CON CLU SION For the reasons set forth above, 1. The Court ACCEPTS and AD OPTS the Magistrate J udge’s findings of fact, conclusions of law, and recom m endations (Doc. 22) pursuant to 29 U.S.C. § 636(b)(1) and Rule 72(b); 2. Plaintiff’s Objections (Doc. 23) are OVERRU LED ; 3. Plaintiff’s Motion for Sum m ary J udgm ent (Doc. 14) is D EN IED ; 4. Defendant’s Motion for Sum m ary J udgm ent (Doc. 18) is GRAN TED ; 5. The decision of the Com m issioner is AFFIRMED ; and 6. This m atter is D ISMISSED W ITH PREJU D ICE. SO ORD ERED this 6th day of March, 20 18. / s/ Harry S. Mattice, Jr._ _ _ _ _ HARRY S. MATTICE, J R. UNITED STATES DISTRICT J UDGE 8
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